IN THE SUPREME COURT OF IOWA

IN THE SUPREME COURT OF IOWA

No. 15?1131 Filed June 9, 2017 Amended August 25, 2017

LARRY SHAWN WHITWER, Appellee,

vs. CIVIL SERVICE COMMISSION OF THE CITY OF SIOUX CITY, IOWA,

Appellant.

Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.

A civil service commission appeals a district court's reinstatement of a civil service employee after he was terminated pursuant to a lastchance agreement. REVERSED.

Justin Vondrak, Assistant City Attorney, Sioux City, for appellant.

Jay E. Denne of Munger, Reinschmidt & Denne, LLP, Sioux City, for appellee.

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MANSFIELD, Justice. This case requires us to determine the enforceability of a so-called

"last-chance agreement" entered into by a civil service employee. After a municipal firefighter pled guilty to domestic abuse assault, the municipality offered to discipline him with a short suspension instead of terminating his employment. However, in exchange, the municipality insisted that the firefighter agree to give the municipality discretion to terminate him immediately and without appeal if he violated the law again or violated the related no-contact order. The firefighter accepted the municipality's proposal and signed the written last-chance agreement.

Just over a year later, the firefighter violated the no-contact order related to the domestic abuse assault. When the city terminated his employment in reliance on the agreement, the firefighter attempted to appeal his termination to the civil service commission. The commission declined to hear his appeal. On judicial review, however, the district court reinstated the firefighter. The district court ruled that the lastchance agreement was not valid because the commission had not approved or reviewed it before the parties entered into it.

On appeal, we now reverse the district court. Consistent with the authority in other jurisdictions, we conclude that a civil service employee may enter into a valid last-chance agreement. Such an agreement, however, remains subject to principles of contract law, such as the duty of good faith and fair dealing. Accordingly, we do not decide whether a last-chance agreement can be used to terminate a civil service employee when there has been a significant lapse of time or the breach is de minimis or unrelated to the reason for the agreement.

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I. Background Facts and Proceedings. For over twenty years, Larry Whitwer served as a firefighter with the Sioux City Fire Department. In July 2012, Whitwer was arrested for an assault. He later pled guilty to domestic abuse assault in violation of Iowa Code section 708.2A(2)(a) (2013). At sentencing, the court granted Whitwer a deferred judgment. The court also extended a previously entered no-contact order for five years. See id. ? 664A.5. On September 26, the day after Whitwer pled guilty, he was placed on administrative leave from the fire department, with pay, and a predisciplinary hearing was scheduled for October 5. Before that hearing, Fire Chief Tom Everett spoke with Dan Cougill, a representative from the firefighters' union, about the appropriate discipline for Whitwer's actions. Although Whitwer could have been terminated, Everett and Cougill discussed the possibility of Whitwer signing a last-chance agreement. Under the agreement, Whitwer would not be terminated because of the domestic abuse assault guilty plea and he would instead serve a short suspension. Whitwer would agree, among other things, to abide by the no-contact order and consent to immediate termination if he violated that order. Whitwer would also be required to waive the right to appeal if he were later terminated under the last-chance agreement. In an email sent September 27, Chief Everett noted that he "spoke for some time [with Cougill] about . . . what exactly the last chance means." Chief Everett and Cougill then separately discussed the proposed discipline and lastchance agreement with Whitwer's personal attorney. Meanwhile, Connie Anstey, an attorney for the City of Sioux City (City), drafted the two-page document titled "Disciplinary Agreement" in anticipation of the hearing. The agreement provided that it would be a

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"complete resolution to the disciplinary action relating to incidents which

took place on or about July 21, 2012." The agreement then included

several provisions that "Whitwer, the Sioux City Professional Fire

Fighter's Association, and the City of Sioux City agree to . . . in lieu of

Mr. Whitwer's immediate termination:"

1. The City agrees that the only disciplinary action which will be taken regarding the alleged misconduct . . . is contained in this agreement unless this agreement is breached by Mr. Whitwer. In the event of breach of this agreement by Mr. Whitwer, the City reserves the right to impose further disciplinary action up to and including immediate termination.

2. That Mr. Whitwer shall be subject to transfer at the sole discretion of the Fire Chief and shall receive a five (5) shift suspension from work without pay for violation of Sioux City Fire Rescue Rules and Regulations . . . .

. . . .

5. That Mr. Whitwer shall strictly abide by all court issued no contact orders in Woodbury County Case No. . . . , and shall not, either while on duty or off duty violate the court imposed no contact order in person, by telephone or through the use of third parties.

. . . .

7. That this agreement is a last chance agreement and as such, it is agreed that Mr. Whitwer may be terminated from his employment with the City without cause and without appeal rights under the labor agreement between the City and Union or under the provisions of the Iowa Civil Service laws at any time following the execution of this agreement. It is understood that Mr. Whitwer may be immediately terminated under this provision for any violation of the law (excluding simple misdemeanor traffic or parking tickets), violation of the no contact order, violation of Fire Department Rules and Regulations or the City Administrative Policies which may occur during this agreement.

8. The Union and Mr. Whitwer specifically waive all claims, disputes, appeals and grievances which have arisen or which may arise from the discipline given Mr. Whitwer pursuant to this Agreement.

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Due to scheduling conflicts, the hearing was moved forward to October 1.1 On that day, Chief Everett, Anstey, and Bridey Hayes, director of human resources for the City, were in attendance on behalf of the City. Cougill and a second representative from the firefighters' union were present, as was Whitwer. Whitwer's personal attorney was not at the meeting, although neither Whitwer nor the union asked that the meeting be continued for that reason.

All parties understood that the purpose of the hearing was to review the last-chance agreement. After that review, Whitwer could either sign the agreement or be terminated for the domestic abuse assault guilty plea. Chief Everett read aloud the entire agreement and asked Whitwer if he had any questions. Whitwer was given time to study the document. The union representatives asked to discuss the agreement in private with Whitwer. City officials honored the request and left the room. When they returned, Whitwer and the union representatives had several questions relating to the proposed shift suspensions. Chief Everett asked Whitwer if he had any other questions about the agreement, and Whitwer replied that he did not. At that point, Whitwer, Chief Everett, and Cougill each signed five copies of the agreement. Whitwer then became emotional and apologized. Chief Everett responded to Whitwer, "[W]e really want you to be successful."

For the next thirteen months, Whitwer continued to work as a firefighter without incident. However, in November 2013, police were dispatched on reports that Whitwer was texting and attempting to meet with and otherwise reach the victim in violation of the no-contact order.

1The October 1 hearing was audio recorded and is a part of the record in this case.

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